United States Court of Appeals
For the First Circuit
No. 03-1674
UNITED STATES OF AMERICA,
Appellee,
v.
LARRY J. COCCIA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Circuit Judge,
Siler,* Senior circuit Judge,
and Howard, Circuit Judge.
Raymond E. Gillespie on brief for appellant.
S. Waqar Hasib, Special Assistant United States Attorney,
with whom Michael J. Sullivan, United States Attorney, was on
brief, for appellee.
May 5, 2006
*
Of the Sixth Circuit, sitting by designation.
HOWARD, Circuit Judge. Defendant Larry Coccia appeals,
on several grounds, his conviction for possession of a firearm
while subject to a domestic restraining order, pursuant to 18
U.S.C. § 922(g)(8). We affirm.
I.
We present the facts in the light most favorable to the
verdict, see United States v. Boulerice, 325 F.3d 75, 79 (1st Cir.
2003), reserving a discussion of some facts for our analysis.
Coccia, a retired U.S. Air Force officer, was in the
midst of a difficult divorce in Pennsylvania in 2001. A
Pennsylvania family court had issued a domestic restraining order
against Coccia on April 2, 2001. The order forbade him from
abusing, harassing, or threatening his wife or children, and from
"possessing, transferring or acquiring any weapons" for one year
from the date of the order.
To increase his chances of securing more favorable
visitation rights with his children, Coccia traveled to New England
to seek a favorable psychological evaluation from an "Ivy League"
doctor. Ultimately, he secured an appointment with a psychiatrist,
Dr. Margaret McGovern, in Wellesley, Massachusetts. Coccia met
with Dr. McGovern on three consecutive days in November 2001.
During the first session, Dr. McGovern became "spooked"
by her new patient, who refused to provide any information about
where he was staying. Concerned for her safety, Dr. McGovern
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arranged to have her daughter call during the second session to
confirm that she was safe. Matters worsened at the second session.
Coccia stated that he might plan a bombing or disperse anthrax;
that he was capable of such things based on his military
experience; that Dr. McGovern would read about his actions in the
papers; that he would go after President Bush; and that he had been
previously caught with firearms in his car in Maryland in violation
of a judge's order. Dr. McGovern was sufficiently troubled by
Coccia's comments that she called the FBI before the third
session.1 Two FBI agents, accompanied by two Wellesley police
officers, including Detective Jill McDermott, met with Dr. McGovern
shortly before the appointment. Dr. McGovern and the officers
agreed that, in light of Coccia's comments, a more extensive in-
patient psychiatric evaluation was warranted.
Coccia arrived in a rental car, jam-packed with his
personal possessions, and parked in Dr. McGovern's circular
driveway directly in front of her front door.2 Dr. McGovern met
with Coccia, informed him that the she had called the FBI, and
notified Coccia that FBI agents were waiting for him. Thereafter,
while the officers and agents met with Coccia, Dr. McGovern
1
The event triggering the call was the then-unexplained crash of
an airliner in New York on morning of November 12, 2001. This
crash, and more general concerns about terrorism following the
September 11, 2001 attacks, increased Dr. McGovern's fear that
Coccia posed a real danger.
2
Dr. McGovern practiced out of her home.
-3-
prepared a "pink paper", i.e., an order from a medical professional
providing for the involuntary commitment and psychiatric evaluation
of an individual thought to be a danger to himself or others.3
Coccia was upset and hostile. He discussed his divorce, the
custody proceedings, and his intent to relocate to Colorado. But
he did not answer the officers' questions about where he was
staying in Massachusetts. Upon learning that his car would be
towed, Coccia refused to give his car keys to the officers or
consent to a search of the vehicle. While awaiting the ambulance,
Coccia called his sister in Michigan to tell her what was happening
to him.
After Coccia was taken away, Detective McDermott and her
partner arranged to tow Coccia's vehicle. A subsequent inventory
search at the Wellesley Police Department's impound lot revealed
several double-edged knives, a replica pistol, and a rifle case.
At this point, Detective McDermott and her partner obtained a
search warrant. After obtaining the warrant, the officers opened
Coccia's rifle case, which contained an assault rifle and
approximately 1300 rounds of ammunition. The officers also found
documentation regarding the divorce and child custody actions, a
copy of the restraining order, a knapsack containing over $160,000
in cash, and a receipt for a recent purchase of ammunition.
3
See generally McCabe v. Life-Line Ambulance Service, Inc., 77
F.3d 540, 547-49 (1st Cir. 1996).
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Coccia was indicted on one count of violating 18 U.S.C.
§ 922(g)(8), which outlaws possession of a firearm by anyone
subject to a domestic restraining order. He moved to suppress the
firearm on the ground that the decision by the Wellesley police
officer to impound his vehicle violated his Fourth Amendment
rights. He argued that the seizure of his vehicle was unreasonable
because he could have made other arrangements to remove it from Dr.
McGovern's driveway. At the suppression hearing, Dr. McGovern and
McDermott testified for the government. Terri Torres, Coccia's
sister, and Tim Aiken, a friend of Coccia's, testified for the
defense that other arrangements could have been made for Coccia's
vehicle. The district court denied the motion and held that the
towing decision was reasonable under the circumstances.
At trial, the government presented the testimony of
McDermott and a firearms expert, as well as documentary and
physical evidence. Coccia elected to represent himself, with
standby counsel assisting him, and took the stand on his own
behalf. He testified that he was heartbroken by his family
situation and desperately trying to improve it, had not said
anything inappropriate to Dr. McGovern, had purchased the gun and
ammunition as an investment many years before, had never fired the
gun, had never seen the restraining order, and was in the process
of moving to Colorado. Coccia's parents and sister testified
regarding Coccia's character and family travails.
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The jury convicted him, and the district court, departing
upward from the applicable guidelines sentencing range based upon
Coccia's dangerousness, sentenced him to sixty months'
imprisonment. This appeal followed.
II.
Coccia raises several challenges to his conviction.
First, he argues that the district court erred in denying his
motion to suppress. Second, he asserts that the court erred in
denying his motion for acquittal on the ground that the
Pennsylvania restraining order did not contain the restrictions
explicitly required by 18 U.S.C. § 922(g)(8)(C)(ii). Third, he
contends that § 922(g)(8) is unconstitutional under the Second
Amendment, the Tenth Amendment, the Due Process Clause of the Fifth
Amendment, and the Commerce Clause.4
A. Motion to Suppress
Coccia contests the towing of his car from Dr. McGovern's
property as an unreasonable seizure in violation of the Fourth
Amendment.5 The government responds that the decision by the
4
The government questions whether Coccia preserved all issues for
plenary appellate review but argues Coccia's claims fail on the
merits in any event. Except where we note otherwise, we will
assume arguendo that Coccia's claims were preserved.
5
He does not, however, challenge the subsequent inventory search of
his car after it was towed. In any event, if the seizure of the
car was unconstitutional, the materials later recovered during the
inventory search would be excluded. See United States v. Duguay,
93 F.3d 346, 351 (7th Cir. 1996).
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police officers to impound the car was a reasonable exercise of
their community caretaking function.
We consider Coccia's claim under a bifurcated standard.
See United States v. Kornegay, 410 F.3d 89, 93 (1st Cir. 2005).
We review factual findings for clear error and legal conclusion de
novo. See United States v. Meada, 408 F.3d 14, 20 (1st Cir. 2005).
In so doing, "we will uphold a denial of a motion to suppress if
any reasonable view of the evidence supports it." United States v.
Garner, 338 F.3d 78, 80 (1st Cir. 2003).
Generally, a law enforcement officer may only seize
property pursuant to a warrant based on probable cause describing
the place to be searched and the property to be seized. See Horton
v. California, 496 U.S. 128, 133 n.4 (1990). There are, however,
exceptions to this requirement, including the community caretaking
exception.6 See Cady v. Dombrowski, 413 U.S. 433, 446-447 (1973).
The community caretaking exception recognizes that the police
perform a multitude of community functions apart from investigating
crime. In performing this community caretaking role, police are
"expected to aid those in distress, combat actual hazards, prevent
6
At least one commentator has argued that the community caretaking
function should not be considered an exception to the warrant
requirement because police officers acting pursuant to community
caretaking objectives can seldom meet the requirements necessary to
obtain a warrant. Therefore, the Warrant Clause of the Fourth
Amendment should be deemed inapplicable to community caretaking
searches and seizures. See, e.g., Debra Livingston, Community
Caretaking and the Fourth Amendment, 1998 U. Chi. Legal F. 261
(1998).
-7-
potential hazards from materializing and provide an infinite
variety of services to preserve and protect public safety." United
States v. Rodriguez-Morales, 929 F.2d 780, 784-85 (1st Cir. 1991).
Relevant here, the community caretaking function encompasses law
enforcement's authority to remove vehicles that impede traffic or
threaten public safety and convenience. See S. Dakota v. Opperman,
428 U.S. 364, 368-69 (1976).
Coccia acknowledges the community caretaking exception,
but, citing Opperman and Colorado v. Bertine, 479 U.S. 367 (1987),
he argues that the community caretaking exception does not apply to
the impoundment of his car because the government failed to
establish that the car was towed from Dr. McGovern's property
pursuant to standard operating procedures. We disagree with his
contention that the absence of standardized criteria invalidates
the impoundment at issue in this case.
Neither Opperman nor Bertine holds that the impoundment
of a vehicle conducted in the absence of standardized protocols is
a per se violation of the Fourth Amendment. Indeed, Opperman does
not even concern impoundments. Its focus is on the need for
standards to govern inventory searches conducted after a lawful
impoundment. See also Florida v. Wells, 495 U.S. 1, 4 (1990)
(stating that criteria or standardized routine must guide an
officer's discretion during an inventory search); United States v.
Hellman, 556 F.2d 442, 444 (9th Cir. 1977) ("It is the inventorying
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practice and not the impounding practice that, if routinely
followed . . . could render the inventory search a reasonable
search under Opperman.").
Bertine as well was concerned primarily with the
constitutionality of an inventory search. It is true that the
Court did state that the impoundment of the car in that case was
reasonable under the Fourth Amendment because it was conducted
pursuant to standard criteria and was based on something other than
the suspicion of criminal activity. 479 U.S. at 375. Contrary to
Coccia's suggestion, however, we do not understand Bertine to mean
that an impoundment decision made without the existence of standard
procedures is per se unconstitutional. Rather, we read Bertine to
indicate that an impoundment decision made pursuant to standardized
procedures will most likely, although not necessarily always,
satisfy the Fourth Amendment. See Miranda v. City of Cornelius,
429 F.3d 858, 864 (9th Cir. 2005) ("[T]he decision to impound
pursuant to the authority of a city ordinance and a state statute
does not, in and of itself, determine the reasonableness of the
seizure under the Fourth Amendment."); see also United States v.
Goodrich, 183 F. Supp. 2d 135, 140-41 (D. Mass. 2001) (stating that
impoundments conducted pursuant to standardized procedures fall
within a safe harbor of constitutionality).
Courts, including this one, have frequently held that
impoundments of vehicles for community caretaking purposes are
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consonant with the Fourth Amendment so long as the impoundment
decision was reasonable under the circumstances. See Rodriguez-
Morales, 929 F.2d 780, 786 (1st Cir. 1991) (collecting cases).
This reasonableness analysis does not hinge solely on any
particular factor. See United States v. Miller, 589 F.2d 1117,
1125-26 (1st Cir. 1978) (concluding that the seizure of a boat was
constitutional under the community caretaking exception, without
regard to the existence of standard procedures, because the
officers' conduct in boarding the boat was reasonable under all of
the circumstances); Miranda, 429 F.3d at 865 (stating, in an
impoundment case, that the question upon review "of a state-
approved search (or seizure) is not whether the search or seizure
was authorized by state law. The question is rather whether the
search was reasonable under the Fourth Amendment.").
We have explained previously that it is inappropriate
for the existence of (and adherence to) standard procedures to be
the sine qua non of a reasonable impound decision:
Virtually by definition, the need for police to
function as community caretakers arises fortuitously,
when unexpected circumstances present some transient
hazard which must be dealt with on the spot. The police
cannot sensibly be expected to have developed, in
advance, standard protocols running the entire gamut of
possible eventualities. Rather, they must be free to
follow "sound police procedure," that is to choose freely
among the available options, so long as the option chosen
is within the universe of reasonable choices. Where . .
. the police have solid, non-investigatory reasons for
impounding a car, there is no need for them to show that
they followed explicit criteria in deciding to impound,
as long as the decision was reasonable.
-10-
Rodriguez-Morales, 929 F.2d at 787. We did not decide in Rodriguez-
Morales whether standard procedures could be required where, as
here, the impoundment was followed by an inventory search, but we
do not think a per se rule requiring such standards would be
appropriate. 929 F.2d at 787 n.3. As explained in Rodriguez-
Morales, standard protocols have limited utility in circumscribing
police discretion in the impoundment context because of the numerous
and varied circumstances in which impoundment decisions must be
made. See id. at 787. Moreover, a police officer's discretion to
impound a car is sufficiently cabined by the requirement that the
decision to impound be based, at least in part, on a reasonable
community caretaking concern and not exclusively on "the suspicion
of criminal activity." Bertine, 479 U.S. at 375. Accordingly, the
impoundment of Coccia's car did not violate the Fourth Amendment
merely because there was no evidence that the impoundment was done
pursuant to pre-existing police protocols.
As we held in Rodriguez-Morales, whether a decision to
impound is reasonable under the Fourth Amendment is based on all the
facts and circumstances of a given case. See id. at 785 (stating
that to find whether the impoundment of a car was reasonable a court
must "look to all the facts and circumstances of the [present] case
in light of the principles set forth in prior decisions"). For
several reasons, the decision to tow Coccia's car from Dr.
McGovern's property was reasonable.
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First, Coccia was being removed from Dr. McGovern's
property in an ambulance for a psychiatric evaluation, and there is
no claim that the decision to evaluate Coccia was pretextual.
Because Coccia would be indisposed for an indeterminate, and
potentially lengthy, period, the officers properly made arrangements
for the safekeeping of the vehicle, which was packed with his
personal belongings. Because Coccia's car was filled with many of
his belongings, it was a possible target for theft or vandalism.
See United States v. Ramos-Morales, 981 F.2d 625, 626 (1st Cir.
1992) (Breyer, C.J.) (impounding a vehicle to protect it from theft
or vandalism is reasonable under the community caretaking
exception).
Second, towing the vehicle reduced the risk of a future
confrontation between Coccia and Dr. McGovern. Coccia knew that Dr.
McGovern had been involved in the decision to commit him and there
was testimony that Coccia was angry about the commitment. Under the
circumstances, the officers were reasonable in concluding that
removing Coccia's car from Dr. McGovern's property would eliminate
the need for Coccia to return to Dr. McGovern's property to collect
his car and thereby reduce the possibility of a violent altercation.
Third, Coccia's comments to Dr. McGovern led to a concern
that Coccia's car might contain items constituting a threat to
public safety, such as explosive material, chemicals or biological
agents. Pursuant to the community caretaking function, police may
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conduct warrantless searches and seizures to take possession of
dangerous material that is not within anyone's control. See Cady,
413 U.S. at 447-48 (finding warrantless search proper under the
community caretaking exception where the officers reasonably
believed that a gun was abandoned in the trunk of a car).
Finally, there was no obvious alternative means for
removing the car other than impoundment. The only call that Coccia
made before going to the hospital was to his sister in Michigan, and
he did not inform the officers of another means to remove the car.
In these circumstances, the officers were reasonable in concluding
that there was no one immediately available to take the car.7 See
United States v. Vega-Encarnacion, 344 F.3d 37, 41 (1st Cir. 2003)
("Caselaw supports the view that where a driver is arrested and
there is no one immediately on hand to take possession, the
officials have a legitimate non-investigatory reason from impounding
the car.")
Despite these facts supporting the reasonableness of the
impound decision, Coccia argues that the impoundment was
unreasonable because Officer McDermott admitted that she wanted to
7
Coccia contends that the seizure of his car was improper because
the officers did not provide him with an opportunity to arrange for
someone else to pick-up the car. There is no such requirement.
See Vega-Encarnacion, 344 F.3d at 41 ("Law enforcement officials
are not required to give arrestees the opportunity to make
arrangements for their vehicles when deciding whether impoundment
is appropriate").
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search the car, and that the impoundment was unlawful under
Massachusetts law. Neither contention is persuasive.
That Officer McDermott may have favored impounding the car, in
part, because she wished to search its contents is not dispositive.
A search or seizure undertaken pursuant to the community caretaking
exception is not infirm merely because it may also have been
motivated by a desire to investigate crime. "As long as impoundment
pursuant to the community caretaking function is not a mere
subterfuge for investigation, the coexistence of investigatory and
caretaking motives will not invalidate the seizure." Rodriguez-
Morales, 929 F.2d at 787; see also Bertine, 479 U.S. at 372 (search
is valid if it is not for the "sole purpose of investigation"). As
discussed above, there were legitimate community caretaking
justifications for impounding Coccia's car and there was no evidence
that these justifications were merely pretext for an investigatory
search.8
8
There is precedent for an alternative approach limiting our
reasonableness inquiry to the objective facts justifying a seizure
for community caretaking purposes and not considering the officer's
subjective motivation. Cf. United States v. Beaudoin, 362 F.3d 60,
66 n.1 (1st Cir. 2004) (concluding that officers' subjective
intent is irrelevant in determining the constitutionality of a
search pursuant to the emergency exception to the warrant
requirement). As this issue is not outcome determinative here, we
do not reach the question of whether a showing that the officers'
subjective motive was entirely investigatory would suffice to
invalidate a warrantless seizure defended by the government on
community caretaking grounds.
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Finally, assuming that the legality of the impoundment
under state law is relevant to the Fourth Amendment inquiry, the
impoundment of Coccia's car did not violate Massachusetts law.
Under Mass. Gen. L. ch. 266, § 120 D, a car may be only be towed
from private property at the request of the car owner or the
property owner. See Commonwealth v. Brinson, 800 N.E.2d 1032, 1038
(Mass. 2003). Officer McDermott testified that Dr. McGovern wanted
the car removed from her property. This testimony was supported by
Dr. McGovern's statements to the officers that she feared Coccia.
The officers could have reasonably inferred from Dr. McGovern's
statements that she wanted the car towed to avoid any further
confrontation with Coccia.9
In sum, we conclude that the officers acted reasonably by
towing Coccia's car from Dr. McGovern's property. The motion to
suppress was therefore properly denied.
B. Motion to Acquit
Coccia argues that the district court erred in denying his
motion for acquittal because the Pennsylvania domestic abuse order
did not meet the requirements of 18 U.S.C. § 922(g)(8)(C)(ii).
Specifically, Coccia maintains that the order is inadequate because
9
In a related vein, Coccia incorrectly contends that an impoundment
of a car on private property is per se unreasonable under the
community caretaking exception because the car is not impeding
traffic. See 3 W.R. LaFave, Search & Seizure § 7.3 (c) at 521 (3d
ed. 1996) (collecting cases where the impoundment of a car on
private property was held to comport with the Fourth Amendment).
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it does not use the same verbiage as the statute, which requires
that the order "explicitly prohibit[s] the use, attempted use, or
threatened use of physical force against such intimate partner or
child that would reasonably be expected to cause bodily injury . .
. ." 18 U.S.C. § 922(g)(8)(C)(ii). Coccia posits that, because
the statute requires the order to "explicitly" prohibit "physical
force," only those exact words will suffice. Coccia also contends
that the district court's use of the broad Pennsylvania statutory
definition of "abuse" (which does not match verbatim the wording in
§ 922(g)(8)(C)(ii)) in the jury instructions did not cure this
shortcoming.10 The government maintains that the order's language
meets the statutory requirement. We review a district court's Fed.
R. Crim. Pro. 29 determinations de novo. United States v. Pimental,
380 F.3d 575, 583-84 (1st Cir. 2004).
The one circuit that has addressed this issue readily concluded
that an order directing the defendant to "refrain from abusing" his
wife satisfied the requirements of 18 U.S.C. § 922(g)(8)(C)(ii).
See United States v. Bostic, 168 F.3d 718, 722 (4th Cir. 1999). We
agree. "In scrutinizing [statutory] language, we presume . . .
that Congress knew and adopted the widely accepted legal definitions
of meanings associated with the specific words enshrined in the
statute." United States v. Nason, 269 F.3d 10, 16 (1st Cir. 2001).
10
Coccia did not object to this jury instruction at trial and does
not argue that its use constituted plain error. See generally
United States v. Zanghi, 189 F.3d 71, 79 (1st Cir. 1999).
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The definition of "abuse" as a verb includes "[t]o injure (a person)
physically or mentally." Black's Law Dict. (8th ed. 2004). "Abuse"
as a noun includes "[p]hysical or mental maltreatment, often
resulting in mental, emotional, sexual, or physical injury." Id.
Thus, the commonly understood definition of "abuse" includes
violent acts involving physical force within the definition. This
suffices. "[C]ourts are bound to afford statutes a practical,
commonsense reading," O'Connell v. Shalala, 79 F.3d 170, 176 (1st
Cir. 1996), and Coccia's narrow reading, which would subvert
Congress' intentions in passing § 922(g)(8), fails this test.
C. Constitutional Claims
Coccia raises a host of constitutional challenges to 18 U.S.C.
§ 922(g)(8). First, Coccia asserts that the statute violates
individual rights embodied in the Second Amendment because (1) the
rights may be lost too readily and (2) restraining order forms that
provide clearer notice are available. Second, Coccia claims that
§ 922(g)(8) is unconstitutional under the Commerce Clause because,
in light of the Supreme Court's rulings in United States v. Lopez,
514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598
(2000), it seeks to regulate conduct with no real economic impact.
Third, Coccia posits that § 922(g)(8) violates the Due Process
Clause, as applied, because he did not received fair notice that his
conduct was wrongful. See Lambert v. California, 355 U.S. 225
(1957). Finally, Coccia asserts that § 922(g)(8) violates due
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process and the Tenth Amendment because it violates state
sovereignty. Specifically, Coccia contends that 18 U.S.C. § 2265
is overly broad and conflicts with Massachusetts' requirement that
out-of-state restraining orders be registered, and thereby makes its
application to him fundamentally unfair.
We review challenges to the constitutionality of a statute de
novo. United States v. Caro-Muniz, 406 F.3d 22, 26 (1st Cir. 2005).
We conclude that Coccia is essentially inviting us to overturn
established case law with these claims.
As to Coccia's Second Amendment challenge, even the one circuit
court to conclude that the rights embodied in the Second Amendment
vest in the individual, rather than the State, has concluded that
the procedural requirements to be followed before imposing §
922(g)(8)'s restrictions adequately safeguard the right to possess
firearms. See United States v. Emerson, 270 F.3d 203, 261-65 (5th
Cir. 2001). See also United States v. Price, 328 F.3d 958, 961-62
(7th Cir. 2003)(discussing Emerson). Indeed, "[n]o circuit court
which has addressed the question has found 922(g)(8)
unconstitutional under the Second Amendment." United States v.
Lippman, 369 F.3d 1039, 1044 (8th Cir. 2004)(collecting cases).
Given that Coccia has conceded that he had notice of his hearing in
family court, attended the hearing, and participated in the hearing,
we see no basis for departing from this well-established authority.
Moreover, we reject Coccia's contention that the restraining order
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was unclear. Coccia's order specifically provided, in bold-face
type, that "Defendant is prohibited from possessing, transferring
or acquiring any weapons for the duration of this order." There can
be no misunderstanding of such a clear prohibition.
Coccia's Commerce Clause argument is untenable in light of our
case law rejecting this very argument. See United States v.
Wilkerson, 411 F.3d 1, 9-10 (1st Cir. 2005); see also United States
v. Felton, 417 F.3d 97, 103-4 (1st Cir. 2005). Indeed, this court
has characterized facial challenges to § 922(g)'s constitutionality
under the Commerce Clause as "hopeless." See United States v.
Cardoza, 129 F.3d 6, 10-11 (1st Cir. 1997); United States v. Blais,
98 F.3d 647, 649 (1st Cir. 1996).11
We have also rejected a Lambert challenge to § 922(g)(8),
concluding that it passes constitutional muster regarding notice
because both the "proscribed conduct and the affected class of
persons are explicitly set forth." United States v. Meade, 175 F.3d
215, 225 (1st Cir. 1999); see also United States v. Denis, 297 F.3d
25, 28-31 (1st Cir. 2002). As noted above, Coccia's restraining
order specifically forbade him from possessing firearms.12 As we
11
There is no dispute that Coccia's weapon traveled in interstate
commerce.
12
Coccia argues that, under 18 Pa. C.S. § 6105, he is not forbidden
from having firearms unless the restraining order specifically
orders the "confiscation" of his weapons. Coccia did not raise
this claim in the district court, and it falls well-short of
persuading us that a plain error has occurred. See United States
v. Vazquez-Rivera, 407 F.3d 476, 483 (1st Cir. 2005)(arguments not
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said in Meade, given the potential for tragic encounters between
domestic abusers and their victims, "a person who is subject to such
[a domestic restraining order] would not be sanguine about the legal
consequences of possessing a firearm." 175 F.3d at 226.
Coccia's final due process/Tenth Amendment challenge is also
unavailing. This court has held that "section 922(g)(8) is totally
devoid of Tenth Amendment implications" and does not intrude upon
state actors in administering their domestic relations laws. See
Meade, 175 F.3d at 225; see also Bostic, 168 F.3d at 723-24.
Further, 18 U.S.C. § 226513 and the analogous Massachusetts
provision are consistent rather conflicting; registration is not a
mandatory prerequisite to enforcement of another state's restraining
order in Massachusetts. See M.G.L.A. 209A § 5A. Therefore, there
is no fundamental unfairness in applying § 922(g)(8) to Coccia.14
raised before the district court are reviewed for plain error
only). Coccia presents no reason why the Pennsylvania statute
should apply to his conduct in Massachusetts and, more
fundamentally, how the Pennsylvania statute can trump a federal
statute addressing the same issue. Further, the restraining order
form at issue only included a confiscation provision for weapons
that had been used in an act of abuse by the defendant.
13
This section provides that any protection order issued by a state
in compliance with certain procedural standards will be accorded
full faith and credit in all other states and that such orders will
be enforced by the other states without prior registration. See 18
U.S.C. §2265.
14
We have also considered the pro se supplemental brief that Coccia
submitted after argument. The arguments raised therein are
duplicative of those asserted by his counsel or are otherwise
unpersuasive.
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III.
For the reasons stated above, Coccia's conviction is affirmed.
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